The slow death of the Office of the Australian Information Commissioner

FOI needs a strong advocate. Powerful enemies are circling.

By Richard Mulgan

In spite of the Abbott government's best efforts, the Office of the Australian Information Commissioner still survives, seriously wounded but not yet fatally. In its first budget, the government announced it intended to abolish the office, along with the positions of information commissioner and freedom of information commissioner. Funding was to continue for another six months, to the end of 2014, by which time Parliament would have passed the appropriate legislation. However, while funding was duly cut off, Senate crossbenchers were unwilling to pass the necessary amendments to the Australian Information Commissioner Act. As a result, the main Canberra office was closed down while the information commissioner, Professor John McMillan, worked from home with the help of a few remaining staff in the Sydney office.

This year's budget, in recognition that the office was still legally established, restored about half the office's total funding, the bulk of which is earmarked for the privacy function (under the government's original plan, the privacy commissioner will be relocated within the Human Rights Commission). Funding for the FOI function has fallen to $1.7 million, about a third of the amount allocated in the last full year of the office's operation.

In the meantime, the former FOI commissioner, James Popple, resigned in December 2014 and was not replaced, leaving the information commissioner, McMillan, to exercise his FOI responsibilities. Then, in June this year, McMillan himself left to take up the role of NSW Ombudsman (he had been Commonwealth ombudsman from 2003 to 2010). The government has since appointed the last commissioner standing, Privacy Commissioner Timothy Pilgrim, to the role of acting Information Commissioner. No permanent replacements are in the offing (and, indeed, suitable appointees would be difficult to find in the current precarious climate).

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This messy saga raises a number of issues. One concerns the constitutional propriety of the government's actions in defunding the OAIC while the office still remained a legal entity with statutory obligations. Three former justices of the Victorian supreme court, Tim Smith, David Harper and Stephen Charles, wrote in The Canberra Times (in May and June this year) that the action was unconstitutional. They argued the government was in breach of its obligation under section 61 of the constitution to execute and maintain the constitution and the laws of the Commonwealth. To deny a statutory authority the means of exercising its obligations was tantamount to failing to execute a law. In addition, by trying to do away with the OAIC without legal authority, the government was usurping the constitutional role of Parliament, which has the sole right to legislate.

Illustration: Matt Golding.

More recently, the International Commission of Jurists' Australian division has weighed into the debate. Its national president, John Dowd, QC, has written to Attorney-General George Brandis objecting to the government's action in "seeking to achieve executively what it cannot achieve legislatively". Dowd bases his argument on the demands of the rule of law. He quotes eminent English jurist A. V. Dicey, who named the doctrine of the separation of powers as a fundamental principle of the English constitution. When executive action has "the effective result of emasculating a statutory body", it is clear that "the wall of protection separating the executive from the legislature has been breached".

Brandis has yet to respond to the attack from his learned colleagues. However, the gist of the government's response can be gleaned from answers given at the Senate estimates committee in which these issues were raised. A senior Attorney-General's Department official, Matt Minogue, conceded that the government's original intention in the 2014-15 budget was to close the OAIC down, first by withdrawing funds and then through appropriate legislation. However, he said that, when Parliament's resistance became clear, the government, through the 2015-16 budget, was reinstating sufficient funds for the OAIC's functions to continue. At the same time, some of the OAIC's functions were being taken over by the Ombudsman and the Attorney-General's Department, as envisaged in the original plan for disestablishing the OAIC. Exercise of these functions was already within the power of those agencies and did not require enabling legislation. However, whether powers can be transferred away from the OAIC without parliamentary approval, even if the powers can be legally performed by another agency, remains a contested point.

The government's original plan, coupling budgetary defunding with an intention to legislate for abolition, appears to lie well within normal constitutional expectations, even if the defunding came first. Governments often approve executive decisions in the expectation that further legislative endorsement will follow. With all due respect to Dicey, the doctrine of the separation of powers in relation to Parliament should not be elevated into the degree of effective independence enjoyed, say, by the US Congress. If English authorities are to be cited, we should not forget Walter Bagehot, the 19th century author of the English constitution, who found "the efficient secret" of the English constitution to lie in the "nearly complete fusion of the executive and legislative powers". Even so, without question, the executive clearly needs the legislature's approval to change a law.

Where the government went wrong initially was in its political judgment, in underestimating the readiness of the Senate crossbench to hold up key elements of its program. It was buoyed by its decisive election victory and then by the enthusiasm of its radical supporters in the national commission of audit and the business community. For his first budget, Treasurer Joe Hockey planned a decisive blitzkrieg that would fundamentally redraw the structure and functions of the public service. A year later, such confidence appears as unwarranted hubris, but it was not unreasonable at the time.

In relation to the OAIC, the key issue is the propriety of the government's actions once Senate opposition to abolition became clear. On one view, the correct response should have been to respect the will of Parliament and to maintain the office in its then current form as envisaged in the original legislation. The office might have been asked to absorb some cuts, along with everyone else, but should at least have been given sufficient funding to employ three commissioners and perform its key functions effectively, as required by law. In the government's view, however, the level of reduced funding, combined with other arrangements, is sufficient to allow all its functions to be carried out, even if at a distinctively less effective level than previously. The government's case rests on a strict, and distinctly "tricky", interpretation of the law. It will not convince supporters of the former OAIC.

The legal niceties can be left to lawyers. The political reality is that the OAIC has been drastically cut back. How serious are the practical effects? With respect to privacy concerns, the government seems prepared to allow the privacy's commissioner's work to continue much as before. In relation to hearing appeals against FOI decisions, the skeleton staff has made reasonable progress this year in reducing the backlog. It remains to be seen whether this throughput can continue with the departure of McMillan and with only the Privacy Commissioner as the sole commissioner entitled to decide appeals.

More significant is what happens to the information commissioner's function to report generally on government policies in relation to information, including the disclosure and accessibility of government information. This function casts the commissioner in the role of public champion of open government, a role which McMillan performed, for example, by monitoring agencies' administration of FOI and generally advocating a more proactive approach to disclosing information. The claim that the Attorney-General's Department can adequately cover for this function is disingenuous. Expecting the attorney-general to act as a champion of open government is asking the fox to act as the defender of hens.

FOI will certainly need an independent advocate in the immediate future. Powerful enemies are circling. The government has still to respond fully to a review of FOI conducted for the OAIC by Allan Hawke in 2013. Both the Public Service Commissioner, John Lloyd, and the Treasury secretary, John Fraser, have publicly bemoaned the effects of FOI on the quality of written advice. At the recent Australia and New Zealand School of Government conference, the annual gathering of public sector insiders, former Immigration Department secretary Andrew Metcalfe is said to have made similar comments, reporting that many colleagues agreed with him. ANZSOG dean Professor Gary Banks, a former Productivity Commission chairman, added his support.

Expecting the attorney-general to act as a champion of open government is asking the fox to act as the defender of hens.

The criticisms carry weight, particularly in relation to the reluctance of public servants to put frank advice in writing. This unintended (but not unpredicted) consequence of FOI may need to be addressed and the legislation adjusted. At the same time, the genuine advances in government transparency ought to be strongly defended. It is here that the absence of an effective information commissioner will be most keenly felt.

Richard Mulgan is an emeritus professor with the Crawford School of Public Policy at the Australian National University. richard.mulgan@anu.edu.au